European blog on patent law

Rome II

12/08/2010

Ausschreibung in Bulgarien ("Bidding in Bulgaria"), Federal Supreme Court, First Senate, Germany, 11 February 2010, published on 3 August 2010, Docket No. I ZR 85/08

The First Senate of the Federal Supreme Court held that even if two German companies are the only competitors in a foreign market within the EU, the applicable law shall be the law of that foreign country and not German law on unfair competition. The decision was ruled under German Private International Law applicable until January 2009. However, the Court stated explicitly that the same shall apply under the rules of the so called Rome-II-Regulation which is in force now. More concretely, the Court emphasized that even if there are only German competitors on the foreign market, that foreign market is still likely to be affected. Therefore, the general rule of Art. 6 para 1 Rome-II-Regulation shall apply.

Art. 6 para 1 says that the law applicable to a non-contractual obligation arising out of an act of unfair competition shall be the law of the country where (inter alea) competitive relations are, or are likely to be, affected. The court explained that the competition between foreign companies acting in Germany on the one hand, and the competition between German companies acting in a foreign EU-country on the other hand, shall follow the same principles. Therefore, the former jurisdiction of the Senate (cf. BGH GRUR 1964, 316 - Stahlexport) shall not apply anymore in cases where the German companies are the only competitors on the foreign market. Additionally, the Senate held that it is not always possible to determine if there is a non-German competitor on the foreign market. Also, the Senate wants to avoid that the determination of the applicable law depends on the question if there is such third competitor or not.

This new rule will most probably also apply on the supplementary protection of performances by competition law that complements intellectual property rights.